Sweeping court order, lawsuit focus on right-to-participate

June 28, 2026

By MIKE DENNISON

HELENA – Montanans’ constitutional right to participate in government decisions on major developments is front-and-center this month, in a sweeping court decision and separate new lawsuit.

The June 12 court ruling blocked consideration of a water-use permit for an exclusive golf-and-housing development on the west shore of Flathead Lake, while courts decide whether the state illegally denied local groups’ participation in the process.

State District Judge Michael McMahon of Helena also ordered state officials to be questioned, on the record, about their reasoning for excluding public participation in the permit review.

“This ruling is a powerful affirmation of every Montanan’s right to have a voice in the decisions that shape our communities,” said Mayre Flowers, co-executive director of Citizens for a Better Flathead, one of the groups that sued over the issue.

And, just last week, two environmental groups sued the state over a drilling permit for a proposed gold mine near Lincoln, saying the state didn’t provide requested documents about the permit until after the decision had been made.

“If there are documents that are critical to the decision being made by the government, then the public needs to have those in advance,” said Derf Johnson, deputy director of the Montana Environmental Information Center. “That’s where (the Department of Environmental Quality) dropped the ball here.”

The June 24 lawsuit by MEIC and the Clark Fork Coalition – also in McMahon’s court – asks the judge to vacate the state’s approval of the exploratory drilling permit for the Columbia Gold Project, which is owned by an Australian mining firm.  

McMahon’s June 12 decision in the Flathead Lake case came in a lawsuit filed in March by Citizens for a Better Flathead and three others, who are raising questions about a private golf-and-housing development in Lakeside, south of Kalispell.

Discovery Land Co., which operates private, high-end residential communities in Montana like the Yellowstone Club in Big Sky, is behind the proposed development. It would include two private golf courses, 359 homes, a new marina and a private club on the lake.

Citizens for a Better Flathead and the other plaintiffs filed multiple objections last year to the local sewer district’s application for a water-use permit, to serve the development.

The state Department of Natural Resources and Conservation not only denied the objections, but also said the plaintiffs lacked standing to even participate in the permit process.

The groups filed suit in March, asking to overturn the denial of their objections and their exclusion from the process.

Judge McMahon, saying the groups are likely to succeed in their lawsuit, blocked the water-use permit application process while the case is decided.

He said there are significant factual and legal deficiencies connected with DNRC’s “unilateral decision to forever muzzle (plaintiffs’) public comments and objections” to the sewer district’s application.

“Montana law does not allow an agency to prevent a party from developing or presenting material issues and then rely on the resulting silence in the record as a basis to defeat judicial review,” he wrote.

McMahon went a step further, ordering DNRC to allow the plaintiffs to depose all agency employees who worked on the water-use application and DNRC’s decision to “exclude public participation,” and include that information in the court record.

Flowers, of Citizens for a Better Flathead, said McMahon’s order also should prevent Flathead County, for now, from moving forward on the Lakeside development subdivision approval.  

In the case involving the proposed gold mine near Lincoln, the two environmental groups asked the state in March for documents related to the exploratory drilling and a state environmental assessment of the project.

DEQ didn’t provide the documents until last week – almost three weeks after the agency completed the assessment and gave the go-ahead for the mining company to proceed, the lawsuit said.

Those documents “would have been useful in preparing public comments on the (environmental assessment),” the lawsuit said.

Johnson, of MEIC, said Montanans are “guaranteed a fundamental right to participate in governmental decision-making, including permits for hard-rock mines.”

DEQ said it doesn’t comment on active litigation.

Mike Dennison is president of the Montana FOI Coalition